Citation NR: 9604337
Decision Date: 02/23/96 Archive Date: 03/07/96
DOCKET NO. 94-02 256 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake
City, Utah
THE ISSUE
Entitlement to restoration of a 30 percent disability
evaluation for esophagitis with stomach ulcers and gastritis.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Richard T. Foss, Associate Counsel
INTRODUCTION
The veteran had active service from May 1983 to March 1987,
in addition to 16 years, 1 month, and 16 days of prior active
service.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from adverse rating determinations by the
Salt Lake City, Utah, Regional Office (RO) of the Department
of Veterans' Affairs (VA). A hearing was not held in this
case as the appellant did not request one.
The appellant’s representative, in a December 1993 statement,
requested that the appeal be expanded to include the issue of
entitlement to a compensable disability evaluation for
chronic sinusitis. Such issue is not properly before the
Board at the present time, however. Therefore, the issue is
referred back to the RO for appropriate action.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that the VA examination which served
as the basis of the reduction of his disability rating was
entirely inadequate. His representative asserts that the
reduction of the appellant’s disability rating by the RO in
December 1991 consequently represents error on the part of
the RO; it is argued that the RO did not properly consider
the provisions of 38 C.F.R. § 3.344 when reducing the
veteran’s 30 percent evaluation.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claim file.
Based on its review of the relevant evidence in this matter,
and for the following reasons and bases, it is the decision
of the Board that the evidence of record supports the
restoration of a 30 percent disability rating for esophagitis
with stomach ulcers and gastritis.
FINDINGS OF FACT
1. A March 1988 rating decision awarded the appellant a 30
percent disability evaluation for esophagitis with stomach
ulcers and gastritis, effective from April 1987. The basis
of such grant was a December 1987 VA examination which
revealed a 1 centimeter (cm) duodenal ulcer, multiple bulbar
erosions, and antero erosions with distal esophagitis. The
appellant, in December 1987, also complained of getting food
stuck in his throat and having to take antacids on a daily
basis.
2. A December 1991 rating action reduced the appellant’s 30
percent disability rating to 10 percent, effective from March
1992, on the basis of VA examination in May 1991 that was
limited in scope and did not include any special studies.
3. The examination upon which the appellant’s disability
rating was reduced was not sufficiently thorough.
CONCLUSION OF LAW
Restoration of a 30 percent disability evaluation for
esophagitis with stomach ulcers and gastritis is warranted.
38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. §§ 3.105(e),
4.13 and Part 4, Diagnostic Codes 7307, 7305, and 7346
(1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board notes that in regard to the RO’s notification of
the appellant that a reduction in his disability rating had
been proposed, there is a question as to whether notice was
sent to his latest address of record. See 38 C.F.R.
§ 3.105(e) (1995). However, in view of the Board’s decision
in this case on other bases, this matter need not be further
addressed.
Initially, the Board notes that it has found the appellant's
claim for restoration of a 30 percent disability evaluation
for esophagitis with stomach ulcers and gastritis to be well-
grounded within the meaning of 38 U.S.C.A. § 5107(a). That
is, the veteran has presented a claim which is plausible.
The Board is further satisfied that all relevant facts have
been properly developed with respect to this claim and that
no further assistance to the appellant is required in order
to comply with VA's duty to assist him in the development of
this claim, as mandated by 38 U.S.C.A. § 5107(a).
Extensive physical examination of the appellant was conducted
during his initial December 1987 VA examination.
Additionally, the appellant underwent VA
esophagogastroduodenoscopy examination in January 1988.
There were diagnoses in December 1987 of reflux esophagitis
and esophageal spasm possibly related to Schatzki’s ring,
remaining symptomatic. Endoscopic examination in January
1988 revealed a 1 cm duodenal ulcer, multiple bulbar (distal)
erosions with duodenitis, a few antral erosions, and distal
esophagitis. The diagnostic impression at that time was
peptic ulcer disease causing the duodenal ulcer, duodenal
erosions, antral erosions, and distal esophagitis.
A March 1988 rating action by the RO granted service
connection for esophagitis with stomach ulcers and gastritis,
effective from April 1987. A 30 percent disability
evaluation was awarded for the disability.
The appellant was next given a VA examination in May 1991.
In contrast to the December 1987/January 1988 VA examination,
physical examination of the appellant in May 1991 was
cursory, in the Board’s opinion, and he was not scheduled for
any special studies. The RO, based on the May 1991
examination findings, proposed in an October 1991 rating
action to reduce the appellant’s 30 percent disability rating
to 10 percent. A subsequent December 1991 rating decision
implemented such reduction.
Special considerations and protections attach when an RO
contemplates reducing a veteran’s disability rating. For
example, when a change is to be made, the RO must assure
itself that there has been an actual change in the condition
and not merely a difference in the thoroughness of the
examinations. 38 C.F.R. § 4.13.
It is plain from the evidence of record that the May 1991 VA
examination which served as the basis of the reduction of the
appellant’s disability rating was not as thorough as the
December 1987 VA examination which served as the basis of the
grant of his 30 percent disability evaluation for esophagitis
with stomach ulcers and gastritis. Additionally, although
the RO apparently considered whether the appellant might
warrant more than a 10 percent rating under any diagnostic
code relevant to his multiple service-connected
gastrointestinal disorders, the medical evidence was
inadequate to made such a determination since no X-ray,
laboratory or other diagnostic studies were accomplished.
In view of the forgoing the Board concludes that the
appellant’s 3-0 percent rating for his gastrointestinal
disability must be restored.
ORDER
Restoration of a 30 percent disability evaluation for
esophagitis with stomach ulcers and gastritis is granted,
subject to the laws and regulations governing the payment of
VA monetary benefits.
JANE E. SHARP
Member, Board of Veterans’ Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal
is appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the agency
of original jurisdiction on or after November 18, 1988.
Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision
which you have received is your notice of the action taken on
your appeal by the Board of Veterans' Appeals.
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